Social Media – Employer Law Reporthttps://www.employerlawreport.com
Helping employers avoid the storm of legal issues in the workplaceFri, 18 Jan 2019 16:20:07 +0000en-UShourly1https://wordpress.org/?v=4.9.9Uber app decision in California highlights ongoing litigation for website and app accessibilityhttps://www.employerlawreport.com/2018/06/articles/social-media-2/uber-app-decision-in-california-highlights-ongoing-litigation-for-website-and-app-accessibility/
Tue, 05 Jun 2018 17:42:47 +0000https://www.employerlawreport.com/?p=6237A California federal court refused to dismiss a case against Uber alleging that its app did not offer accessible ride options even though the plaintiffs failed to even download the app.

In Crawford v. Uber Tech. Inc., the Northern District of California denied a motion for judgment on the pleadings based on a lack of standing. Uber alleged that the plaintiffs lacked standing to challenge its mobile application because both users admitted that they never download the app. The plaintiffs, instead, argued that they were deterred from downloading the app because they knew that it did not offer the …

A California federal court refused to dismiss a case against Uber alleging that its app did not offer accessible ride options even though the plaintiffs failed to even download the app.

In Crawford v. Uber Tech. Inc., the Northern District of California denied a motion for judgment on the pleadings based on a lack of standing. Uber alleged that the plaintiffs lacked standing to challenge its mobile application because both users admitted that they never download the app. The plaintiffs, instead, argued that they were deterred from downloading the app because they knew that it did not offer the option to call a wheelchair-accessible vehicle. The court agreed that plaintiffs are not required to go to the “futile gesture” of attempting to become a customer when the plaintiffs know that the services are inaccessible.

While the facts of this case (accessibility of ride-sharing services) are limited in their application, the holding on the standing issue has broad application. A primary attack on accessibly litigation has been the standing issue, including arguments that the plaintiff never attempted to be a customer, is ineligible to be a customer or is located too far from the physical location to reasonably be considered a future customer. This case accepts that being deterred from visiting the website or app is sufficient to establish standing.

]]>#Justiceforbradswife: Responding to viral social mediahttps://www.employerlawreport.com/2017/03/articles/social-media-2/justiceforbradswife-responding-to-viral-social-media/
Thu, 30 Mar 2017 17:07:09 +0000http://www.employerlawreport.com/?p=5901Though you may find it hard to believe, there are some things that southern comfort food and a glass of sweet tea just can’t smooth over. Restaurant chain, Cracker Barrel, is finding this out the hard way this week as it draws the ire of the public after Bradley Reid Byrd, the husband of a former Cracker Barrel employee posted one simple question on Cracker Barrel’s Facebook page on Feb. 27, 2017: “Why did you fire my wife?”

The post went largely unnoticed until March 22, 2017 when comedian Amiri King posted the screen grab (above) to his Facebook page …

Though you may find it hard to believe, there are some things that southern comfort food and a glass of sweet tea just can’t smooth over. Restaurant chain, Cracker Barrel, is finding this out the hard way this week as it draws the ire of the public after Bradley Reid Byrd, the husband of a former Cracker Barrel employee posted one simple question on Cracker Barrel’s Facebook page on Feb. 27, 2017: “Why did you fire my wife?”

The post went largely unnoticed until March 22, 2017 when comedian Amiri King posted the screen grab (above) to his Facebook page and the ordeal went viral.

That post has spawned a Change.org petition with nearly 25,000 signatures from people demanding “Justice for Brad’s Wife.” The Google Review page for the Cracker Barrel location in Corydon, Indiana where Brad’s wife once worked has seen an uptick in one star reviews and negative comments about the firing. Brad’s wife’s former manager has been forced to delete her LinkedIn page, and although the company does not allow other users to post to its Facebook wall, Facebook users have bombarded any posts by Cracker Barrel with thousands of comments about “Brad’s wife.”

To this point, Cracker Barrel has not issued a comment about the firing. And frankly, there likely is no truly foolproof response the company can make. Since the reaction to Brad’s Facebook post has garnered so much attention, other employers are bound to face a similar campaign in the future. So what options are available?

Continue the course and say nothing.

Saying nothing may accomplish three purposes for a while:

Time may cause the whole firestorm to pass

Any publicity is good publicity, right?

It gives the employer a time to try to reach some resolution with the employee.

But if the viral response continues unmitigated, some action probably will need to be taken.

Seize it and spin it.

Public relations firms often have success helping their clients to respond with humor to social media failures. But jokes can fall flat. Attempts at humor, particularly when it is related to someone losing their job, may be poorly received, leading to an ineffective campaign and possibly even worse levels of public goodwill.

Speak out.

An employer faced with a social media campaign springing from an employment decision could issue a public statement that simply notes that due to privacy concerns it cannot publicly comment on personnel decisions. Offering a public statement like this one might stymie damage to the brand and defuse the situation.

Halt the cease and desist letter.

No matter what course of action the company takes, sternly worded cease and desist letters are likely to be counterproductive in that they are likely to cause the employee (and his or her spouse) to dig in their heels and can prompt a whole new round of viral posts when the employee inevitably posts the cease and desist letter on Facebook.

The #BradsWife incident should prompt employers to think more about social media in the workplace and their social media policies. More employees are taking to social media to voice their concerns about the workplace. While social media policies are unlikely to protect employers from terminated employees or their concerned family members, social media policies can be an effective tool in protecting the company from truly rogue employees while they are employed.

Employers faced with a social media campaign against it must also consider whether and how to react to social media posts by current employees that may come to rally to the support of a terminated employee or otherwise comment about the workplace. As we have discussed on multiple occasions here, here and here, before disciplining employees for their social media posts, employers will want to evaluate whether the employees are exercising their protected rights under Section 7 of the National Labor Relations Act (NLRA) to express workplace concerns or complaints.

]]>Second Circuit upholds NLRB finding that Triple Play Sports Grille unlawfully terminated employees for Facebook postingshttps://www.employerlawreport.com/2015/10/articles/labor-relations/second-circuit-upholds-nlrb-finding-that-triple-play-sports-grille-unlawfully-terminated-employees-for-facebook-postings/
Fri, 30 Oct 2015 15:27:40 +0000http://www.employerlawreport.com/?p=5584Back in September of last year, we reported on an NLRB decision finding that a Connecticut sports bar, Triple Play Sports Bar & Grille, had unlawfully terminated two employees – one of whom commented on a former employee’s criticism of the employer’s handling of the tax withholding on employee paychecks and the other who clicked “Like” in response to that comment. This past week, the Second Circuit, on Triple Play’s petition for review, upheld the Board’s decision, in a case captioned Three D, LLC, d/b/a Triple Play Sports Bar & Grille v. NLRB.

Back in September of last year, we reported on an NLRB decision finding that a Connecticut sports bar, Triple Play Sports Bar & Grille, had unlawfully terminated two employees – one of whom commented on a former employee’s criticism of the employer’s handling of the tax withholding on employee paychecks and the other who clicked “Like” in response to that comment. This past week, the Second Circuit, on Triple Play’s petition for review, upheld the Board’s decision, in a case captioned Three D, LLC, d/b/a Triple Play Sports Bar & Grille v. NLRB.

In its decision, the Second Circuit held that the employees’ respective comment and “Like” were protected concerted activity under Section 7 of the National Labor Relations Act because they both related to ongoing employee concerns over the employer’s workplace tax withholding and their resulting tax liabilities. The court also concluded that the employees’ Facebook communications were not so disloyal or defamatory as to lose the protection of the Act. Specifically, the court found that the employees did not disparage the employer’s products or services and their communications were not “maliciously untrue.”

The court was not swayed by any profanity contained in the one employee’s comment because it was not made in the presence of or directed at customers and did not reflect the employer’s brand. According to the court, accepting Triple Play’s argument that the Facebook discussion took place “in the presence of customers” could lead to the undesirable result of chilling virtually all employee speech online. “Almost all Facebook posts by employees have at least some potential to be viewed by customers.” As a result, the court upheld the Board’s order requiring the employer to offer reinstatement and full back pay to the terminated employees.

In addition, the court upheld the Board’s finding that the employer’s internet/blogging policy was unlawful under the National Labor Relations Act. That policy provided in relevant part as follows:

“[W]hen internet blogging, chat room discussions, . . . or other forms of communication extend to employees … engaging in inappropriate discussions about the company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment. . . . In the event state or federal law precludes this policy, then it is of no force or effect.”

In short, the court upheld the Board’s finding that employees could reasonably construe this policy as “proscribing any discussions about their terms and conditions of employment deemed ‘inappropriate’ by [Triple Play].”

Takeaways

The Second Circuit’s decision underscores that it won’t be easy to get the courts to rein in the Board’s expansive view of employee rights to engage in communications and activity on social media that are contrary to their employers’ interests. To help avoid liability, employers should therefore:

Have their social media policies reviewed by experienced counsel to eliminate provisions that can be reasonably misconstrued to restrict employees from discussing the terms and conditions of their employment with others; and

Understand, before disciplining employees for any communication or activity on social media, that otherwise protected communications or activities will not lose their protection under the National Labor Relations Act simply because they disparage or are uncomplimentary of the employer, contain statements that are not true, or contain profanity.

]]>No “friending” allowed – final resolution on Gawkers notice of class action participants via social mediahttps://www.employerlawreport.com/2015/04/articles/employment-class-collective-actions/no-friending-allowed-final-resolution-on-gawkers-notice-of-class-action-participants-via-social-media/
Fri, 17 Apr 2015 13:00:44 +0000http://www.employerlawreport.com/?p=5384We have reported on a federal court’s rulings related to plaintiff’s efforts in Mark v. Gawker Media LLC (S.D.N.Y.) to use social media to notify potential class action members here and here. On April 10 the court held that the class plaintiffs, former interns for the website Gawker, can use social media to notify potential members of their class, with certain restrictions. Plaintiffs are permitted to reach known former Gawker interns via social media with a message that is “substantially similar” to the message contained in traditional forms of notice sent in the case. The court, however, ordered that …Continue Reading →]]>

We have reported on a federal court’s rulings related to plaintiff’s efforts in Mark v. Gawker Media LLC (S.D.N.Y.) to use social media to notify potential class action members here and here. On April 10 the court held that the class plaintiffs, former interns for the website Gawker, can use social media to notify potential members of their class, with certain restrictions. Plaintiffs are permitted to reach known former Gawker interns via social media with a message that is “substantially similar” to the message contained in traditional forms of notice sent in the case. The court, however, ordered that plaintiffs “unfollow” any interns on Twitter when the opt-in period closes unless the individual has chosen to opt in to the action. In addition, plaintiffs are not permitted to “friend” individuals on Facebook, as it could create a misleading impression of the individual’s relationship with plaintiffs’ counsel.

]]>More caution from the NLRB to employers with broad handbook prohibitionshttps://www.employerlawreport.com/2015/03/articles/labor-relations/more-caution-from-the-nlrb-to-employers-with-broad-handbook-prohibitions/
Tue, 24 Mar 2015 17:00:54 +0000http://www.employerlawreport.com/?p=5336Similar to our blog post last week on the National Labor Relations Board (NLRB) General Counsel’s guidance memorandum on employee handbooks, a NLRB administrative law judge (ALJ) last week ruled that two handbook provisions that once passed muster are no longer okay. In a decision that pre-dates the GC guidance memorandum, the ALJ found that a handbook rule prohibiting “[a]ny activity which causes harm to the operations or reputation of” the employer to be overly broad and unlawful. According to the ALJ, an employee could reasonably believe that a work strike or complaint to other employees about wages (including complaints …Continue Reading →]]>

Similar to our blog post last week on the National Labor Relations Board (NLRB) General Counsel’s guidance memorandum on employee handbooks, a NLRB administrative law judge (ALJ) last week ruled that two handbook provisions that once passed muster are no longer okay. In a decision that pre-dates the GC guidance memorandum, the ALJ found that a handbook rule prohibiting “[a]ny activity which causes harm to the operations or reputation of” the employer to be overly broad and unlawful. According to the ALJ, an employee could reasonably believe that a work strike or complaint to other employees about wages (including complaints on social media) were prohibited because such activities would cause harm to the operations or reputation of the employer. (It is notable that these activities are protected concerted activity under the National Labor Relations Act, regardless of the employee’s union status.)

In addition to the rule about harm to the operations or reputation, the ALJ also held that a rule barring “[a]ny action that “jeopardizes company contracts or loss of revenues” is unlawful. The ALJ reasoned that an employee could reasonably conclude that union organizing activity leading to the formation of a collective bargaining agreement could have a negative effect on existing contracts or revenues of the Company.

Additionally, the ALJ reasoned that both rules were overbroad because nothing in the handbook suggested protected activity was excluded from the rules. The ALJ stated in a footnote that the employer could have made each provision lawful by expressly excluding protected concerted activity and union organizing activity from the prohibitions.

Notably, the ALJ found against the employer even though the employer withdrew the rules almost a year before the decision because the handbook provisions had been in place for almost two years before their withdrawal.

The lesson for employers: any ambiguous handbook provision will be construed against the employer and if there is any reasonable way in which an employee could view the provision as restricting Section 7 rights, the provision will be considered unlawful by the NLRB. The jury is still out on whether a federal court would agree with the NLRB. Very few of the NLRB’s handbook policy decisions have been appealed that far.

]]>Gawker update: class notification via social media limitedhttps://www.employerlawreport.com/2015/03/articles/employment-class-collective-actions/gawker-update-class-notification-via-social-media-limited/
Thu, 12 Mar 2015 13:50:50 +0000http://www.employerlawreport.com/?p=5234In a previous post, we discussed plaintiffs’ attempt in the class action lawsuit Mark v. Gawker Media LLC (S.D.N.Y.) to notify potential members of the class via social media. On March 5, 2015, U.S. District Judge Alison Nathan took a very limited view of what kind of notification would be permitted when using forums like Reddit, Tumblr, Facebook, Twitter, and LinkedIn. Judge Nathan stated the court’s contemplated use of social media was simply an analogue to the typical mailing of notice and agreed upon use of email. Posts on Reddit and Tumblr must specifically target individuals with opt-in rights, …Continue Reading →]]>

In a previous post, we discussed plaintiffs’ attempt in the class action lawsuit Mark v. Gawker Media LLC (S.D.N.Y.) to notify potential members of the class via social media. On March 5, 2015, U.S. District Judge Alison Nathan took a very limited view of what kind of notification would be permitted when using forums like Reddit, Tumblr, Facebook, Twitter, and LinkedIn. Judge Nathan stated the court’s contemplated use of social media was simply an analogue to the typical mailing of notice and agreed upon use of email. Posts on Reddit and Tumblr must specifically target individuals with opt-in rights, rather than simply calling attention to the lawsuit. Similarly, the use of Twitter, LinkedIn, and Facebook is to be limited to private, personalized notifications sent to potential plaintiffs whose identities are known and may not be reachable by other means. So it appears, at least for now, the court is allowing the use of social media only to the extent it mirrors more traditional means of class notification. This ruling is good news for employers because the use of social media as a means for FLSA class action notification as restricted by the court should not greatly expand the number of opt-in plaintiffs.

]]>Why can’t we be friends? Gawker class action raises specter of notification via social mediahttps://www.employerlawreport.com/2015/02/articles/employment-class-collective-actions/why-cant-we-be-friends-gawker-class-action-raises-specter-of-notification-via-social-media/
Fri, 27 Feb 2015 15:05:19 +0000http://www.employerlawreport.com/?p=5210Attorneys for FLSA class-action defendant Gawker are opposing plaintiffs’ request to expand potential avenues of class notification via social media. Former interns of the blog site Gawker, a website that promotes itself as a “one-stop guide to media and pop culture,” filed a Fair Labor Standards Act class action against the company in June of last year. Mark v. Gawker Media LLC (S.D.N.Y.). The former interns allege that they were not paid for hours of work writing, researching, editing, and lodging stories and multimedia content that “was central to Gawker’s business model as an Internet publisher.” They also allege …Continue Reading →]]>

Attorneys for FLSA class-action defendant Gawker are opposing plaintiffs’ request to expand potential avenues of class notification via social media. Former interns of the blog site Gawker, a website that promotes itself as a “one-stop guide to media and pop culture,” filed a Fair Labor Standards Act class action against the company in June of last year. Mark v. Gawker Media LLC (S.D.N.Y.). The former interns allege that they were not paid for hours of work writing, researching, editing, and lodging stories and multimedia content that “was central to Gawker’s business model as an Internet publisher.” They also allege that Gawker provided no academic or vocational training to the interns during their time with the company. The suit seeks unpaid wages, liquidated and statutory damages, pre- and post-judgment interest, attorney’s fees, and other relief.

Back in November, the district court approved the use of social media for providing notice of the lawsuit to potential class members. Mark v. Gawker Media LLC, 2014 U.S. Dist. LEXIS 155424 (Nov. 3, 2014 S.D.N.Y.). It found that most former interns, the targeted audience, likely used one form or another of social media and that the court only exercised control over materials prepared and sent by the parties, not the discussion that takes place among class members after such notice is sent. Id. The court noted, however, that before disseminating any notice by social media, the parties should confer and describe to the court any disputes they could not resolve. To that end, plaintiffs filed a letter with the court on February 11, 2015 attaching their social media notice plan. Mark v. Gawker Media LLC, 2014 U.S. Dist. LEXIS 155424 (Feb. 11, 2015 S.D.N.Y.).

Gawker responded to the letter on February 17, 2015. Mark v. Gawker Media LLC, 2014 U.S. Dist. LEXIS 155424 (Feb. 17, 2015 S.D.N.Y.). As a result of the court’s prior order allowing notification via certain social media, Gawker did not object to notifying potential class members via Twitter, LinkedIn, and Facebook. Gawker, however, did object to the ways and means used on these sites to notify potential class members. Gawker requests that notifications via Twitter be limited to a single tweet or directed message asking potential plaintiffs to join the lawsuit rather than using hashtags such as “#fairpay” and “#livingwage.” If such hastags are allowed, Gawker asks they be narrowly defined, such as “#gawkerinternlawsuit.” As to notification via a LinkedIn group, Gawker asks that the group profile direct individuals to a copy of the approved notice, without further discussion of the case. Gawker does not want plaintiffs to be able to send announcements with reminders to potential group members. Gawker likewise argue the Facebook page “GawkerInternLawsuit” should be simply a page rather than a group because groups “provide a space for people to communicate about shared interests” and this went beyond mere notification. Furthermore, Gawker did not want plaintiffs to add prospective plaintiffs as “friends” because they are not proposing “friendship” in any sense of the word and such a request would be misleading.

Gawker objected to the use of the websites Reddit and Tumblr in their entirety. As to Reddit, Gawker argues that reaching individuals via this site would serve only to reach people who already have a vendetta against certain Gawker affiliated websites. As to Tumblr, Gawker alleged that Tumblr was not more than a blog and permitting plaintiffs to create a blog was equivalent to creating a website, which they had already done. Finally, Gawker requests that plaintiffs be required to notify it as any approved pages and accounts are created and permit Gawker access to them for the purpose of reading public posts.

The court has yet to rule on the legitimacy of plaintiffs’ request, but the entire controversy raises new issues surrounding class action notification and social media. Social media is more than just a website – it’s a way to contact people, in real time, and exchange information that can quickly be passed on to others. We often hear of news and information “going viral.” It could be that these potential avenues of social media notification will increase group size and public awareness of class actions in general. Watch for potential updates on how the courts handles these thorny issues.

]]>Court holds employers not liable for employee defamatory online speech made using employer computers. Plaintiffs can’t take the money and run!https://www.employerlawreport.com/2014/07/articles/workplace-privacy/court-holds-employers-not-liable-for-employee-defamatory-online-speech-made-using-employer-computers-plaintiffs-cant-take-the-money-and-run/
Wed, 02 Jul 2014 15:43:29 +0000http://www.employerlawreport.com/?p=4913There seems to be a news story every day detailing employee misuse of social media. In fact, in a recent survey released by Proskauer Rose LLP, more than 70 percent of the 110 businesses surveyed reported they had to take disciplinary action against employees for misusing the technology.

Living in the U.S.A., we have grown accustomed to seeing corporate mis-tweets, where an employee accidently posts a personal tweet from a corporate account, and rogue employee cases, where an employee purposefully posts something inappropriate to a corporate social media account.

There seems to be a news story every day detailing employee misuse of social media. In fact, in a recent survey released by Proskauer Rose LLP, more than 70 percent of the 110 businesses surveyed reported they had to take disciplinary action against employees for misusing the technology.

Living in the U.S.A., we have grown accustomed to seeing corporate mis-tweets, where an employee accidently posts a personal tweet from a corporate account, and rogue employee cases, where an employee purposefully posts something inappropriate to a corporate social media account.

But now, introducing a new type of corporate social media mishap, where an employee posts defamatory remarks to an online forum anonymously … from the employee’s company computer … and the employer gets sued for defamation. I’ll pause while that sinks in.

Our cautionary tale comes from Miller v. Federal Express Corp., a case out of Indianapolis where the plaintiffs sued FedEx and 500 Festival for defamation and intentional infliction of emotional distress based solely on the fact that someone using their computers posted allegedly defamatory comments about the plaintiffs. While I can tell you that this cautionary tale has a [spoiler alert] happy ending for FedEx and 500 Festival, this case serves as a reminder to employers to tighten those social media policies and take action against employees who are discovered to be making such statements using the company’s computers.

Jeffrey Miller was a member of the Indiana business community and an employee of a non-profit organization. In the spring of 2008, he worked on a project between two non-profits (one he had worked for in the past and one he was then working for) to build a school. Construction on that project, however, was stopped two years later when the primary financial backer stopped payments allegedly due to defamatory statements by two co-defendants to the suit.

Later, a business magazine published an online article regarding the allegations and the controversy surrounding the school construction. The article itself was harmless enough. But then came the online comments, and some of them were bad … really bad.

One comment posted under the username “JA Fan” read in relevant part:

The new CEO has inherited a mess not of her doing. The former CEO [Miller] and finally –fired VP’s misuse (for their own personal gain) of funds that were dedicated to educating Indiana children are at the very least an embarrassment to the dedicated staff who have continued to push on, and most likely a criminal act. If you were a donor or sponsor in the last decade to these guys, an audit is definitely in order.

Another posted under the handle “Really?” read in relevant part:

Does this include paying the contractors? As the fundraiser and key money guy, probably has an eye on revenue and expenses. … “what is so depressing and unfair is that the subcontractors were never told the funds were suspended and [the non-profits] let them keep working.” … If they told JA, who did not own the building or sign the construction contracts, I’m pretty sure as a tenant with an interest in what’s happening to the building, they would notify the Landlord, President Miller (who did the deal to bring Ivy Tech to the building, who also took money to fund the construction, who was also the “project manager” responsible for day-to-day operations) that his project is going to be halted and his building left in a mess. Now a storied and critical organization is a mess in his wake. Was it the great philosopher, Steve Miller, who said, “Go on, take the money and run!”? Perhaps a relative?

Another posted under “Concernd” read: “these guys are crooks (Jeff Miller, Victor George and other parties) and have been robbing from our community using kids as there [sic] hook. I hope they go to jail!!!!?

This made the Millers (husband and wife sued) wonder, Who’s Been Talkin’? Discovery revealed that the first two comments were made by the vice president of corporate sponsorship at 500 Festival using a company computer located at 500 Festival’s offices. The third comment was made by an unknown person from an IP address assigned to FedEx and was not traceable to any specific user. Rather, it belonged to one of FedEx’s proxy servers that filtered internet traffic from thousands of FedEx users.

And Abracadabra, the Millers sued Federal Express, 500 Festival, and some individual defendants claiming defamation and intentional infliction of emotional distress. Federal Express and 500 Festival moved for summary judgment claiming immunity under the Communications Decency Act (CDA), which [here’s the happy ending] the trial court granted and the appeals court affirmed.

The Application of 230

The relevant, what-you-need-to-know, background about Section 230, which is the immunity provision of the CDA is that it protects companies that serve as intermediaries for online speech from liability for harmful content posted by third parties. Section 230 immunity protects online services, such as Google, Yahoo, and Microsoft, that host or republish third party content from liability based on what the third party says or does on the service. Holding otherwise would cripple internet speech.

Section 230 immunity requires a three-part showing:

The entity seeking immunity is a provider or user of an interactive computer service (ICS).

The plaintiff’s claim treats the entity seeking immunity as the publisher or speaker of the harmful information.

The information at issue was provided by another content provider.

Satisfying those three elements immunizes the defendant from suit, although the author of the offensive content could still be held liable.

In Miller, the court determined 500 Festival and FedEx were both ICS providers because they enabled computer access for multiple users on their respective computer networks to access the Internet by means of the servers on each network. In doing so, the court cited a few cases where employers were sued for online employee misconduct including: Delfino v. Agilent Technologies, Inc., 52 Cap.Rptr.3d 376 (Ca. Ct. App. 2006) (finding the employer was an ICS in suit against employer claiming an employee the employer claiming an employee sent them threatening emails and messages posted to online bulletin boards using the employer’s internet service connection); and Lansing v. Sw. Airlines Co., 980 N.E.2d 630, 631 (Ill. App. Co. 2012) (finding the employer was an ICS in suit for negligent supervision over an employee who sent threatening messages).

The next element provides that the CDA only protects an ICS provider from claims that seek to hold it liable as a publisher. The court found that the Millers were indeed seeking to hold 500 Festivals and FedEx liable as publishers of the defamatory content (as opposed to the Lansing case where the claim was for negligent supervision and not publication). The court found that in suing 500 Festival and FedEx for defamation and intentional infliction of emotional distress that the Millers were certainly seeking to hold both employers as the publishers of the allegedly defamatory posts.

Lastly, the CDA only protects an ICS provider from information provided by someone else. The evidence clearly established that the problematic online posts came from an unknown FedEx user and from an employee of 500 Festival.

Finding the employers satisfied all three elements of Section 230, the court affirmed the trial court’s summary judgment dismissal and sent a message to the Millers to Give It Up.

Takeaways

Employers can try, but they will never be able to control what employees say using the employer’s internet service. The good news for employers is that Section 230 provides immunity for employers for suits that grow out of defamatory online speech made through their computers. But, Don’t Cha Know, it is not a Perfect World, and even with Section 230 immunity, it is important for employers to make sure that their social media or computer usage policies provide sufficient guidance to employees as to what is acceptable online speech that may be made through their computers and what is not. Employers should also be wary of the Lansing opinion, which gives those harmed by defamatory speech a vehicle to go after employers who know their employees are making defamatory statements through use of their computers and do nothing to stop it. While I Want to Make the World Turn Around for employers on these types of liability issues, the law is what the law is. The best practice for an employer is to have proper social media and computer usage policies, train employees on them, and if an employee violates either one, proceed with proper responsive discipline.

“If you comment about the Company on the Internet, you must say that your views are not those of the Company.”

“Do not use the Company’s logo or other trademarks on social media.”

“You may not discuss the Company’s confidential business plans on the internet.”

Do you think these restrictions pass muster under National Labor Relations Board decisions?

Employer efforts to craft social media and other handbook policies to comply with recent NLRB cases and guidance is a little like playing whac-a-mole. No matter how many you smack down, another pops up, and it seems you just can’t win.

First, a quick review of the issue: Section 7 of the National Labor Relations Act gives employees the right to gripe among themselves about wages and other terms and conditions of employment. A workplace policy that says employees may not discuss wages violates that right. In fact, any policy that restricts an employee’s communication about the workplace might violate Section 7, depending on how broad the restriction is. Increasing efforts by employers to control employee communications away from work, specifically on social media, have resulted in the NLRB deciding cases and issuing guidance in recent months finding many of these policies illegal. In fact, it is becoming increasing difficult to keep track of what the NLRB will consider proper or improper.

An NLRB administrative law judge issued a decision recently finding that various policy provisions at one company violate Section 7 rights. Briefly summarized, the policies found to be illegal did the following:

told employees that if they comment about the Company on social media, they are to include a disclaimer stating that their comments do not necessarily reflect the views of the Company;

told employees they may not use the Company’s trademark protected information, such as the Company logo, in on-line communications;

told employees they should not include in on-line communication information about confidential business plans;

told employees not to engage in inappropriate behavior on-line that would be a violation of Company policies if engaged in at work, such as harassment.

How could these things possibly violate the law? Let’s take a look at each one separately.

The disclaimer language:
The Judge found that requiring employees to “disclaim” that the Company’s opinions are not being stated every time they comment on-line about the Company is too great a burden on the exercise of Section 7 rights. The Judge also felt it was improper to require employees commenting about their working conditions to include a message about the employer, finding that to do so is intrusive on Section 7 rights. Pointing to a general principle in some of the Board’s earlier cases, the Judge said that restrictions on employee on-line communications should be no more strict than restrictions on conversations “at the water cooler.” With all due respect to the NLRB and the Judge, it seems that analogy fails to recognize the very significant difference in the potential impact on the Company of inter-personal conversations versus on-line communications, which could reach hundreds or thousands of recipients. Also interesting to note is that the employer, arguing for the defensibility of the restriction, pointed to earlier NLRB advice memos stating that requiring disclaimers like this would be considered alright. The Judge ruled that the advice memos were just the opinion of the NLRB’s top lawyer and not binding precedent. One mole down, another pops up.

Logos and Other Trademark Information:
This part of the Judge’s decision is not really news. The Board has ruled in the past that employers should not place blanket restrictions on use of things like logos because the law protecting trademarks is not quite that broad. For example, it is not technically illegal for employees to reproduce a company logo as long as they are not doing so for commercial purposes. Therefore, the NLRB concludes it is improper to prohibit all employee use of logos or other trademarks. A policy prohibiting use of logos or similar trademarks must be written narrowly to prohibit only the use for profit or other purposes that are protected under the law.

Confidential Business Plans:

Apparently trying to craft a policy consistent with earlier NLRB guidance, the employer in this case narrowed the restriction on disclosure of confidential information by including a list of examples. The idea is to list representative examples so that employees do not think that wages and working conditions are considered “confidential information.” After giving a few examples of confidential information, such as pricing information and customer lists, the company also included a statement prohibiting circulation of “rumors or speculation about the company’s business plans.” The Judge concluded that the phrase “business plans” was too broad. After all, he reasoned, business plans could include plans or rumors of plans for business transfers, closures, lay-offs, etc. In this Judge’s opinion, it is permissible for employees to disclose information about these sorts of company plans, since they affect working conditions, such as job security. If that does not trouble you enough, consider that in other cases, the Board has upheld very broadly worded restrictions such as a rule against spreading “harmful gossip.” So now there are cases upholding a broad restriction on spreading harmful gossip but also saying that you cannot specifically prohibit spreading rumors about business plans. More moles.

Inappropriate Conduct:

The employer’s policy prohibiting inappropriate conduct on-line, such as harassment, was found illegal because it was written very broadly. It prohibited “disparaging” company employees and executive leadership. That language prohibits you, for example, from griping about a supervisor you think is unfair. It is possible this part of the policy would have passed NLRB scrutiny if it had not been for those broad provisions.

Conclusion

This decision illustrates once again how very important it is for companies to review their policies that restrict employee communications both at and away from work. If a policy is found by the NLRB to be illegal, the Board will require that it be rescinded and will require the employer to communicate to the workforce that it was determined to be illegal. My “whac-a-mole” analogy notwithstanding, employers are well-advised to make their best good faith efforts to draft and enforce these policies narrowly and consistent with NLRB restrictions.

]]>Daughter’s Facebook brag underscores the enforceability of confidentiality clauses in settlement and severance agreementshttps://www.employerlawreport.com/2014/03/articles/eeo/daughters-facebook-brag-underscores-the-enforceability-of-confidentiality-clauses-in-settlement-and-severance-agreements/
Thu, 06 Mar 2014 13:42:03 +0000http://www.employerlawreport.com/?p=3024We all understand the importance of including a confidentiality clause in settlement, severance, and separation agreements. While nothing can prevent a departing employee from going on a conspicuous shopping spree or driving around town in a flashy new car with his/her settlement dollars or severance payment, employers want to avoid a situation where a former employee openly discloses the amount of a settlement or severance payment and encourages legal challenges by other employees who may have different circumstances than the employee receiving the payment and/or causing discord among current employees who feel cheated by the departing employee receiving a payment …Continue Reading →]]>

We all understand the importance of including a confidentiality clause in settlement, severance, and separation agreements. While nothing can prevent a departing employee from going on a conspicuous shopping spree or driving around town in a flashy new car with his/her settlement dollars or severance payment, employers want to avoid a situation where a former employee openly discloses the amount of a settlement or severance payment and encourages legal challenges by other employees who may have different circumstances than the employee receiving the payment and/or causing discord among current employees who feel cheated by the departing employee receiving a payment they do not believe the employee deserved. A recent Facebook mistake by the daughter of a plaintiff who settled a lawsuit with his former employer highlights the need for well drafted confidentiality clauses. In a story making news beyond just the human resources and legal circles, Dana Snay’s Facebook post cost her father his $80,000 settlement.

Patrick Snay sued his former employer, Gulliver Prepatory School in Miami, for failing to renew his contract. He alleged age discrimination and retaliation. The case resolved confidentially for $60,000 in attorney’s fees, $10,000 in back pay, and $80,000 in non-wage damages. The payments were subject to a confidentiality clause with a tender-back provision for the $80,000 payment. The confidentiality clause prohibited Snay from discussing the case or the settlement with anyone but his attorneys and spouse. Snay told his daughter about the settlement allegedly because she had suffered psychological scars from the incident and needed to be told something about its resolution. This breach of the confidentiality clause on its own probably never would have become known. Snay’s college-age daughter, however, could not resist bragging about the settlement on Facebook. “Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.” As is true of many ill-advised Facebook posts, Dana Snay forgot that current and former Gulliver students were among her 1,200 friends. News traveled back to the school’s lawyers who challenged the settlement just four days after the deal was executed, refusing to make the $80,000 payment. A Florida appeals court ruled in favor of Gulliver Preparatory. “His daughter [] did precisely what the confidentiality agreement was designed to prevent, advertising to the Gulliver community that Snay had been successful in his age discrimination and retaliation case against the school,” the court’s opinion said. Snay has an option to appeal to the Florida Supreme Court.

My guess is that Ms. Snay is no longer going to Europe and has learned a valuable lesson about Facebook posts that will serve her well in her first job after college. But employers can learn something from this incident too. If an employer wants to prevent disclosure of the existence or amount of a settlement or severance payment, a well written confidentiality clause is essential. These clauses can permit disclosure to immediate family members (the Snay/Gulliver confidentiality clause did not) but subject those family members to the same confidentiality requirements as the employee, preventing disclosure outside the immediate family.